Citation Nr: 18159823 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 10-17 266 DATE: December 20, 2018 ORDER For the rating period from April 29, 2008 to June 28, 2008, a 70 percent disability rating for posttraumatic stress disorder (PTSD) is granted. For the rating period from August 1, 2008 to September 28, 2015, a 70 percent disability rating for PTSD is granted. For the rating period beginning September 28, 2015, a 70 percent disability rating for PTSD is granted. REMANDED For the entire rating period on appeal (excluding the temporary total rating period from June 29, 2008 through July 31, 2008), entitlement to a disability rating in excess of 70 percent for PTSD is remanded. FINDING OF FACT Throughout the rating period on appeal, the Veteran’s PTSD disability more nearly approximated occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood. CONCLUSIONS OF LAW 1. For the rating period from April 29, 2008 to June 28, 2008, the criteria for a 70 percent disability rating for PTSD are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. For the rating period from August 1, 2008 to September 28, 2015, the criteria for a 70 percent disability rating for PTSD are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 3. For the rating period beginning September 28, 2015, the criteria for a 70 percent disability rating for PTSD are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1968 to December 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from March 2009 and January 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The issues on appeal were previously denied by the Board in an August 2017 decision. Thereafter, the Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2018 Joint Motion for Remand (JMR), the Court vacated the August 2017 decision and remanded the issues to the Board. The details of the JMR are addressed in the section below. Laws and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R., Part 4 (2017). Separate diagnostic codes identify the various disabilities. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In deciding the Veteran’s increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. The Veteran’s PTSD is rated under the General Rating Formula for Mental Disorders, found at 38 C.F.R. § 4.130 (2017). A 30 percent evaluation is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss(such as forgetting names, directions, recent events). A 50 percent evaluation is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficult establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The Veteran’s disability rating has been staged over the course of the appeal. At the time he filed his claim in August 2008, PTSD was evaluated as 30 percent disabling. In a January 2017 rating decision, the RO assigned an evaluation of 50 percent from April 29, 2008 through June 28, 2008. From June 29, 2008 through July 31, 2008, a temporary total (100%) evaluation was assigned due to a period of inpatient hospitalization. A 50 percent evaluation was continued, effective August 1, 2008 through September 27, 2015. From September 28, 2015, a 30 percent evaluation has been maintained, and the RO determined that a higher evaluation was not warranted for this period. The relevant evidence of record includes post-service VA treatment records. The Veteran was seen for an initial psychiatric evaluation at a VA medical center in April 2008. He presented with a depressed mood and moderate to high anxiety and irritability. He denied any recent panic or current suicidal or homicidal ideation, plans, or intentions. The Veteran reported multiple chronic medical problems and a long history of marital discord. His sister had died four months ago and his son had died six months ago. He was retired from his job as a police officer since 2000 due to cardiac disease. The Veteran reported socializing at his local VFW and fishing. During evaluation, the Veteran was alert and well oriented. His speech was goal-directed and not rapid or pressured. His grooming and hygiene were good. Mood was depressed. The Veteran described episodes of severe anxiety, but no panic, agitation, or psychosis. It was noted that the Veteran had occasional combat related nightmares. He also described episodic intrusive thoughts of his military experiences. He was diagnosed with PTSD, alcohol dependence (binge drinker), nicotine dependence, and adjustment disorder. As discussed in the Court’s JMR, the evidence includes a May 2008 VA treatment record where the Veteran reported passive suicidal ideation. The Veteran also expressed feeling down or hopeless “nearly every day.” VA outpatient treatment records show that the Veteran was hospitalized from June 29, 2008 to July 25, 2008 following an attempted suicide. At that time, he described a number of stressful events, including the death of his son from an accidental drug overdose in October of 2007, the loss of his only sister within the past year, his wife being diagnosed with ovarian cancer four years ago, and involvement in an extramarital affair which his wife confronted him about six months ago. He also reported that he started drinking heavily two years ago. He was hospitalized for acute cholecystitis. After this, the Veteran shot himself after hanging up on the crisis hotline. The crisis hotline sent police to his house and he was found with a gunshot wound to his left chest. He described frequent thoughts of Vietnam and complained that he was becoming progressively more depressed. As discussed in the Court’s JMR, a July 2008 VA psychiatry note indicated that the Veteran had been under a great deal of pressure in “the past year.” At a January 2009 VA examination, the examiner noted that the Veteran had recently been hospitalized after a suicide attempt attributed to alcohol, depression, and marital difficulties. At the time of his discharge, he was referred to the Vet Center for counseling, but reported that he never contacted them. He was taking Effexor and Valium, which he reported helped him feel less irritable and depressed and helped him sleep. While he reported that he still had some PTSD symptoms, he denied any suicidal intent or substance abuse; however, he admitted that he still had occasional suicidal thoughts. During the evaluation, the Veteran also described hearing his name called once a week when no one is there, but denied any delusions. He reported symptoms of depression. He also complained of some irritability and trouble with concentration and stated that he “thinks too much.” He described hypervigilance, an exaggerated startle response, and thoughts and nightmares of Vietnam. VA outpatient treatment records from February 2009 through January 2017 reflect that the Veteran maintained an active social life during the period through September 2015, volunteering in his community, engaging in civic organizations, attending church, hunting, and spending time with his family. However, in a February 2009 VA treatment record, it was noted that the Veteran’s PTSD symptoms (such as depression) were not controlled and, although he denied being suicidal, the Veteran felt like he needed to get guns out of his house. As discussed in the remand section below, a February 2009 VA treatment record noted that the Veteran had also been hospitalized for depression “several weeks ago” at the Highland Drive VA Medical Center (these treatment notes regarding this purported hospitalization are not currently of record). In September 2015, the Veteran was afforded a new VA examination. At that time, the Veteran stated that his wife had died in January 2012 and that most of his friends have passed away. He informed the examiner that he now lived alone with his dog. The examiner noted that the Veteran had been seen for psychiatric medication management by VA since 2008. He was currently on Venlafaxine SA 150 mg a day and Trazodone 50 mg at night and reported that these medications helped stabilize his mood and helped him sleep. The Veteran reported attempting suicide in 2008, but had no prior attempts and had no subsequent attempts, and no longer had access to guns. The Veteran continued to report symptoms of depressed mood, anxiety, and chronic sleep impairment. Upon mental status examination, the Veteran’s mood remained depressed secondary to the loss of his wife, which the examiner characterized as normal grief. He also reported feeling anxious, but denied panic attacks. He denied ideation to harm others, but does report that he often experiences “road rage.” The Veteran reported having crying spells related to the loss of his wife. He denied anhedonia and engages in some pleasurable activities. Nightmares occurred approximately two or three times per month and had daily intrusive memories. He reported hypervigilance and was very uncomfortable when in large groups, stating he always sat with his back against a wall. The examiner characterized his symptoms as relatively mild, and noted that there did not appear to have been any significant change in symptoms over the years. Upon review of the evidence of record, the Board finds that the Veteran’s PTSD symptoms more nearly approximate the 70 percent rating criteria throughout the rating period on appeal (excluding the period of a temporary total rating). In this regard, and as discussed by the September 2015 VA examiner, the Veteran’s symptoms over the years had not undergone any significant changes. The Board also recognizes that the 70 percent rating criteria do not distinguish between active and passive suicidal ideation and that, in some cases, the mere presence of suicidal ideation (ranging from passive thoughts of one’s own death to active thoughts of engaging in suicide-related behavior), may cause occupational and social impairment with deficiencies in most areas. See Bankhead v. Shulkin., 29 Vet. App. 10 (2017). Here, the Veteran had one very serious suicide attempt by shooting himself in the chest in 2008. He has also reported passive suicidal ideation. See e.g., May 2008 VA treatment record. Further, there is some indication that the Veteran was again hospitalized due to his PTSD symptoms in and around February 2009. Moreover, the evidence discussed above shows near continuous depression as contemplated by the 70 percent rating criteria. See January 2009 and September 2015 VA examination reports. During the January 2009 VA examination, the Veteran also reported hearing his name called once a week when no one was there (auditory hallucinations). These symptoms are specifically included in the 70 percent rating criteria under Diagnostic Code 9432 and more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, judgment, thinking, and mood. Accordingly, and resolving any reasonable doubt in the Veteran’s favor, the Board finds that the criteria for a 70 percent rating for PTSD are approximated for the entire rating period on appeal (excluding the temporary total rating period from June 29, 2008 through July 31, 2008). 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. The issue of whether a rating in excess of 70 percent for PTSD is addressed in the remand section below. REASONS FOR REMAND In the June 2018 JMR, the Court indicated that the Board erred by failing to ensure VA complied with the duty to assist regarding records relevant to the claim. Specifically, the Court explained that a February 2009 VA treatment record noted that the Veteran had been hospitalized for depression “several weeks ago” at the Highland Drive VA Medical Center (VAMC). However, these records are not part of the Veteran’s claims file and there is no indication that VA attempted to obtain these records. Thus, VA failed to satisfy its duty to assist in obtaining relevant records from a Federal agency and remand is warranted for the Board to obtain these Highland VAMC records. 38 C.F.R. § 3.159(c)(2) (2017).   The matter is REMANDED for the following actions: 1. Obtain treatment records from the Highland Drive VAMC, to include any hospitalizations records in and around February 2009. All records should be associated with the claims file. If VA is unable to obtain these records, the Veteran must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 2. The, readjudicate the claim as to whether, for the entire rating period on appeal (excluding the temporary total rating period from June 29, 2008 through July 31, 2008), entitlement to a rating in excess of 70 percent for PTSD is warranted. If any determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case. The Veteran should be afforded the applicable time period in which to respond. E. BLOWERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel